Vijay Munda vs State Of Jharkhand on 25 August, 2017

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CRIMINAL APPEAL(SJ) NO. 70 OF 2010

Against the judgment of conviction dated 23.06.2009
and order of sentence dated 01.07.2009 passed in
Session Trial No. 660 of 2006 by Judicial
Commissioner, Ranchi.

Vijay Munda son of Mangra Munda, resident of Nagra
Toli, P.S.- Lalpur, P.O.- Lalpur, District-Ranchi
…….Appellant
Vs.
The State of Jharkhand…….Respondent

For the Appellant : Mr. Anurag Kashyap
For the Respondent: Mrs. Niki Sinha, APP

PRESENT
HON’BLE MR. JUSTICE RATNAKER BHENGRA

C.A.V. On 28.07.2017 Delivered on 25 / 08 / 2017

By Court: This criminal appeal is directed against the

judgment of conviction dated 23.06.2009 and order of
sentence dated 01.07.2009 passed by learned Judicial
Commissioner, Ranchi in S.T. No. 660 of 2006 convicting
the appellant under sections 376/511 of the Indian Penal
Code and sentencing to undergo Rigorous imprisonment for
five years and to pay a fine of Rs. 1000/- and in default to
undergo simple imprisonment for one month.

2. The prosecution case, in brief, is that on 01.04.2006 in
the evening at about 4.30 P.M., accused Vijay Munda made
an attempt to commit rape on a girl, hereinafter referred to
as the victim, aged about 6 years. The alarm raised by
victim attracted her sister, the victim who rushed to the
place of occurrence and saw her sister, the victim and
accused were undressed and the accused was committing
rape. She raised alarm and called her father. As soon as,
the informant Nelson Minz who is the father of victim
reached to the place of occurrence, accused Vijay Munda
fled away.

3. On 02.04.2006 , a written report was lodged on the
basis of which Lalpur P.S. Case No. 29 of 2006 under section
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376 of the Indian Penal Code against accused Vijay Munda
was registered. The police , after due investigation ,
submitted charge sheet under section 376/511 of the Indian
Penal Code and accordingly, cognizance was taken. The
case was committed to the court of sessions and registered
as Sessions Trial No. 660 of 2006. The charge under section
376/511 of the Indian Penal Code was framed and it was
read over to the accused to which he pleaded not guilty
and claimed to be tried. After conclusion of the trial the
appellant was convicted under sections 376/511 of the
Indian Penal Code and sentenced as aforesaid. Hence, this
appeal.

4. The Prosecution has examined all together nine
witnesses to substantiate the charge including informant,
victim, I.O., and the doctor, but no witness on behalf of
accused was examined in his defence. Nelson Minz, the
father of the victim was examined as P.W. 4. He supported
the prosecution case and stated that on 1st April, 2006 in
the evening at 4.30 P.M., he was at home. His daughter
Nishi Minz had gone to nearby shop, whereas the second
daughter or victim was playing in the lane situated near
the house. Nishi Minz returned from the shop and informed
that Vijay Munda had pulled the victim down on the floor in
a hut and was lying upon her. P.W. 4 then rushed to the
place of occurrence and saw Vijay Munda lying upon the
victim and they were undressed. The accused had pressed
the mouth of the victim with his hand. He caught hold of
Vijay and tried to assault him, but he scuffled with him and
fled away. He brought his victim daughter home and the
matter was informed by him to his wife when she returned
home. There was festival of Sarhul on the date of incident.
On the next day, a Panchyati was convened in which head
of Vijay Munda was shaved and the people directed the
informant to take the accused to the police station, but he
fled away. The matter was reported to police. The informant
proved the written report which was marked as Ext.1. He
claimed to identify accused Vijay Munda in dock. In course
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of cross examination the informant deposed that on the
date of occurrence he had not gone to enjoy Sarhul festival.
He had taken liquor on occasion of Sarhul, but not with the
accused. Vijay Munda was brought by his brother to the
Panchyati and in course of taking him to police station, he
fled away.

5. P.W. 2 is the reported victim, she deposed her age as
6 years. The victim identified the accused and said that he
is the person who opened her panties and also undressed
himself and laid upon her. Her mouth was pressed by the
accused. Meanwhile, her sister Nishi reached to the place
and saw them. Her sister called her father, thereafter, Vijay
fled away. In her cross examination she says that she was
playing at the place of occurrence and she had disclosed
the incident to her parent.

6. P.W. 1 is Nishi Minz, sister of the reported victim and
she deposed that when she was returning home from the
nearby shop, she heard alarm raised by her sister. She
rushed to the place and saw her sister, the victim lying
naked on the ground and the accused Vijay Munda
undressed and lying on top of her. She went home and
informed the matter to her father who rushed to the place,
caught hold of Vijay and tried to assault him, but the
accused scuffled and fled away. She claimed to identify the
accused in Court. In course of her examination she deposed
that the mother of her friend had asked her to bring Biscuit
from the shop.

7. P.W. 3 is Usha Minz, the mother of the victim, she
deposed that on the date of incident, it was Sarhul festival,
and the people and neighbours had consumed alcohol and
they were in festive mood. The next morning, a Panchyati
was convened, thereafter, the matter was reported to
police. She admits that she returned home at about 8.30
p.m., from her job and learned about the incident. In para 4
of her cross examination she deposed that her husband had
not sent her daughter to purchase article rather her
neighbour had sent her.

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8. Paras Laka ( P.W. 5) and Gautam Lakra ( P.W. 7) have
not supported the prosecution case and have been
declared hostile by the prosecution. They were cross
examined, during which their statement recorded under
section 161 of the Cr.P.C. were referred to them to which
they have denied. Krishna Lakra ( P.W. 6) is a hearsay
witness and he had said nothing about the incident.

9. P.W. 9 is Dr. Manju Prasad, she had deposed that on
02.4.2006 she had examined victim girl at 12.30 P.M. and
she proved the medical report as Ext.-3. According to this
witness, no evidence of sexual intercourse was found at the
time of examination of the victim . The age of the victim
was assessed as seven years by the doctor.

10. P.W. 8 is Dhaneshwar Ravidas and he was the
Investigation Officer of the case. He deposed that on
02.4.2006, he was posted at Lalpur Police Station. On that
day Nelson Minz and his victim daughter reached to the
police station at about 10.30 A.M. with a written report. On
the basis of the written report, Lalpur P.S. Case No. 29 of
2006 under section 376 of the Indian Penal Code against
accused Vijay Munda was registered. He proved the
endorsement made on the written report which is marked
as Ext.-1/1 and the formal F.I.R. as Ext.-2. He had deposed
that he had inspected the place of occurrence, arrested the
accused and after completing investigation, found the
occurrence true and submitted charge sheet against
accused Vijay Munda. In para 5, the attention to the I.O. was
drawn towards the statement of hostile witness P.W. 5 and
P.W. 7. He confirmed that the aforesaid witnesses in their
statement recorded during investigation supported the
occurrence. During his cross examination, he admits that
the informant was accompanied by many villagers and he
had examined some of them during investigation.

ARGUMENTS OF COUNSELS

11. The learned counsel for the appellant has read out
written report as well as the deposition of the informant
and pointed out that the appellant had, as per the written
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report, run away on seeing him but in his deposition, he
says that on going to the place of occurrence, he caught
hold of the appellant and he had hit the appellant. Further,
he has said that informant in his deposition mentioned that
the occurrence had taken place in a Jhopri/Hut, which is not
there in the FIR and submitted that these additions and
development to the initial allegations vitiates the entire
criminal case, which is sought to be made out against the
appellant. He has also pointed out from the deposition that
this witness himself was drunk at the relevant time and that
can be made out from the evidence that has come in his
deposition. He has pointed out to the evidence of the doctor
P.W. 9 and said that victim was examined immediately on
the next date after the occurrence i.e. on 02.04.2006 and it
was found that there was no injuries on the private part or
no stain were found on the private part. There was no dead
or alive spermatozoa found. The opinion of the doctor was
that no evidence of sexual intercourse found at the time of
examination. Counsel further said that there is no such
injury, no spermatozoa or no sign of hurt, struggle found
which, therefore, exonerates the appellants. Pointing to the
evidence of alleged victim, P.W. 2, aged about 6 years, he
has argued that her evidence was taken almost one year
after the occurrence and there was sufficient time for her to
be tutored and therefore, the evidence to be taken very
cautiously by the court. He has further said that any child
witness has to be tested first whether she is mature and
capable of giving such evidence and he has read out from
the victim’s evidence, first portion and said that it has
come that the court himself has said she was not able to
distinguish between dates and months and thus argued that
she was not capable or a matured or rational witness. In
spite of that her evidence was taken into account. He has
asserted that victim was not a competent witness and lacks
understanding to have deposed against the appellant and
just to falsely implicate the appellant, the child was tutored
to give such evidence against the appellant. However, he
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has said that the allegations under sections 376/511 of the
Indian Penal Code are not corroborated by the medical
evidence and it is not sufficient to mention that it is a
heinous crime. It has to be judged by the material evidence
that are available . Counsel has also said that after the
occurrence, appellant was very much present in the vicinity
and in fact it has come in the evidence of P.W. 4 that he was
present in panchyati which would go to show he was not
guilty of any crime and had not run away. If he had
committed such crime he might have run away or
absconded and he has also pointed out, rather argued that
it is beyond imagination that at the time as mentioned i.e.
approx 4.50 pm, in a crowded place such crime would have
been committed and it is simply unbelievable that such an
attempt would be made by the appellant. Counsel has
argued that P.W. 1, who is elder sister, P.W. 2, victim
herself and P.W. 3, her mother, who is in any way a hearsay
witness and P.W. 4 who is father and the informant, are all
interested witnesses, therefore, the only persons alleging or
supporting the prosecution story are the witnesses who are
directly related to the alleged victim . He has then argued
that rest of the witnesses, P.W. 5, P.W. 6 and P.W. 7 are
independent and they have been declared hostile or did not
support the prosecution case. He has further argued that if
there was any truth in the matter then these witnesses ,
who have been declared hostile ,would have also supported
the prosecution case. They also belong to village or
neighbourhood. Basing all these arguments, counsel for the
appellant has said that the conviction of the appellant is not
sustainable. He has further submitted that appellant had
remained in custody during trial from 29.4.2006 to
26.2.2007 , approx-10 months and thereafter from
27.03.2009 to 13.04.2010 till bail, as per high court order,
hence, total approx 2 years and counsel has finally
submitted that at the time of occurrence, the appellant was
a boy of very tender age and he was in custody for about 2
years, so in any way, he has spent sufficient time in
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custody.

12. On conclusion of the arguments, appellant’s counsel
has submitted that in case appellant is held guilty, then his
tender and young age, of 18 years at the time of occurrence
and that he had already spent time in custody for about two
years of the imposed sentence of R.I. for 5 years be taken
into account to mitigate his sentence. He has also cited the
judgment in Bharwada Bhoginbhai Hirjibhai Vs. State
of Gujarat reported in (1983) 3 SCC 217 in support of
reduced sentence. Counsel has also pointed out that the
year of occurrence was 1975 and in 1983, the Hon’ble Apex
Court, while upholding conviction had reduced the
sentence.

13. Learned counsel for the State, learned Additional P.P.
Mrs. Niki Sinha, has however, argued that it is a heinous
crime against the child victim and there is sufficient
evidence given by the witnesses to sustain the conviction of
the appellant. She has said that such allegations would not
be made by P.W. 4, the informant, who is the father and
supported by the other so called “interested witnesses”,
who are the victim, sister and the mother, unless the
allegations were true. It is not, in normal course of
behaviour, to make such heinous allegations against any
one, unless there is truth in the allegations. She has further
added that there is no reference to any enmity between the
parties to sustain that the allegations were made due to any
enmity or made with any motivated reason or to put up a
false case. She has referred to evidence of P.W. 1, who is
the sister of the victim, Nishi Minz and she has pointed out
from the depositions in paragraph nos. 2 that the attempt
to commit rape has been described by the elder sister and
she was also a young girl at the time of examination and
her age was 8 years, and in normal course she would not
concoct such a thing for the sake of making false case
against any one. She has again read out from the
evidence of victim girl P.W. 2, paragraph no. 2 where the
attempt has been described and said that the victim and
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her sister are child witnesses and they have supported the
prosecution story. Regarding P.W. 3, she has said that she is
mother, though she may be hearsay witness, but it has
come, she was immediately informed about the incident
after the occurrence and she has deposed in such a
manner. Regarding P.W. 5, she has submitted that though
he has been declared hostile but it has come out from his
deposition that he had tried to catch hold of the appellant
but the appellant had run away. She has also submitted
that it has repeatedly come in the depositions of P.W.
3,4,6 and 7 that the panchyati was held and there is no
reason that the panchyati was immediately held after the
occurrence. It means that something definitely had taken
place and to settle the matter the panchyati had taken
place. She has also pointed out from the evidence of doctor
and said that though from the evidence of doctor or the
report of doctor the case for rape does not seem to be
made out but it does not mean that the case for offences
under sections 376/511 is not made out that can still be
sustained but from the evidence of both the sisters, it is
clearly stated that objectionable occurrence had taken
place. She has referred to deposition of I.O. in para 7 and
she has pointed out that the I.O. had gone in search of the
appellant in his house and he was found missing or
absconding and therefore, it is a good indication to say he
was evading the apprehension of arrest because he was
guilty of the offences alleged.

F I N D I N G S

14. Having gone through the records of the case and
having gone through the arguments of learned counsels,
the following points are concluded;-

(a) P.W.4, the father of the reported victim , has said
he was at home at the time of the incident, and rushed
to the place of occurrence on being informed by her
elder daughter Nishi Minz. It would be too far fetched
to think that a father would concoct such a case
against the accused which would also affect his young
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daughter as well as his family in many uncertain and
negative ways, that too as has been pointed out by the
learned Additional P.P., when there has been no
reference to any prior and existing dispute or enmity
between the parties. The father, is thus a natural and
reliable witness, some inconsistencies in his evidence
does not extract from the main accusation made
against the appellant.

(b) The two sisters, the reported victim, aged 6 years
at the time of her deposition, as well as Nishi Minz,
aged 8 years have both had their maturity and
competence to depose tested and assessed by the
learned trial court who only recorded that the victim
had some difficulty with days and month, but was
otherwise competent to depose. Both the reported
victim as well as the elder daughter have described
the manner of the occurrence, and from their
deposition it is clear that attempt to have sex was
being made. Due to the alarm made by the elder sister
and the intervention of the father of the victim, the
accused must have failed in his intended purpose.
Both girls have already described the occurrence, and
have also identified the accused in court and are
thoroughly reliable and believable child witnesses.
(c ) P.W. 5, Paras Lakra and P.W. 7, Gautam Lakra
have been declared hostile, however, the I.O. attention
was drawn to their evidence, and the I.O., deposed
that under section 161 of the Cr.P.C. statements, both
had supported the occurrence. So even if declared
hostile, their evidence as to the fact of occurrence,
during investigation stands supported by the I.O. So
appellants counsel argument that these independent
witnesses should be believed is not possible. I have
also gone through the evidence of the doctor or P.W.9.
This has been strongly been relied upon by the
appellant to state that rape and also offence under
section 376 /511 of the IPC did not take place. While
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from the evidence of the doctor, it can be concluded
that rape did not take place, it cannot be concluded on
her evidence alone that offence under section 376 /
511 did not take place. I have also noted what the I.O.
or P.W. 8, Dhaneshwar Rabidas has deposed and in
reiteration it is said that he had examined the
aforesaid witnesses, including P.W. 5 and P.W. 7, who
had also supported the prosecution case. Hence, the
claim by the appellant’s counsel that the independent
witnesses P.W. 5 and P.W. 7 have turned hostile and
not supported the prosecution case may not be of
much good to them. The I.O. has also deposed that he
had also inspected the place of occurrence and after
finding the occurrence true, submitted charge sheet
against the accused, or herein appellant Vijay Munda.

(d) I have also gone through the judgment in
Bharwada Bhoginbhai Hirjibhai ( supra) which ,
though is a case of reduced sentence , for the offence
under section 376/511 IPC, does not help the appellant
as far as minor discrepancy go. The Hon’ble Apex
Court observed therein as follows:-

“6. Discrepancies which do not go to the
root of the matter and shake the basic
version of the witnesses therefore cannot
be annexed with undue importance. More
so when the all important ‘ probabilities
factor’ echoes in favour of the version
narrated by the witnesses.”

(e) further in the case on hand, appellant’s counsel
has argued that section 376 and even section 376/511
is not made out, particularly because, there is no
corroboration. For the offence under section 376 IPC
corroboration by the doctor’s report and opinion would
have mattered. In the case cited by the appellants, the
conviction in the facts and circumstances of the case
was under section 376/511 of the Indian Penal Code
and in this regard was similar to the case on hand. The
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Apex Court in Bharwada Bhoginbhai Hirjibhai case
( Supra) observed in para-11 as follows:-

“1….On principle the evidence of a
victim of sexual assault stands on par with
evidence of an injured witness. Just as a
witness who has sustained an injury ( which
is not shown or believed to be self inflicted)
is the best witness in the sense that he is
least likely to exculpate the real offender,
the evidence of a victim of a sex offence is
entitled to great weight, absence of
corroboration notwithstanding. And while
corroboration in the form of eye witness
account of an independent witness may
often be forthcoming in physical assault
cases, such evidence cannot be expected in
sex offences, having regard to the very
nature of the offence. It would therefore be
adding insult to injury to insist on
corroboration….”

15. Thus, having gone through the records of the case, the
arguments of both counsels and for my aforesaid
reasonings, I am not inclined to acquit the appellant , but
hold the appellant Vijay Munda, guilty and sustain the
judgment of conviction in S.T. Case No. 660 of 2006 dated
23.06.2009 passed by the learned court below. Regarding
sentencing, I have noted the judgment and sentence cited
in Bharwada Bhoginbhai Hirjibhai case ( supra). In that
case the sentence imposed was of 2 and ½ years and
reduced to 15 months. In the case on hand sentence
includes 5 years R.I. of which he has spent around 2 years
in custody.

16. I note also that it is more than ten years from
01.04.2006, which is the date of occurrence. In the
aforesaid facts and circumstances and reasonings and
noting that appellant was at the time of occurrence of the
tender age of 18 years, and probably immature, I reduce
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the sentence to two and a half years, the period of custody
under gone will be set off against the reduced sentence.
Though, the sentence is reduced as indicated herein, the
sentence regarding fine and its default remains intact. The
successor or concerned court is directed to take necessary
steps in accordance with law. His bail bond is cancelled.
Accordingly, this appeal is dismissed with conviction being
upheld, with modification in sentence.

( Ratnaker Bhengra,J.)

Jharkhand High Court, Ranchi
Dated 25 / 08 /2017
Sharda/NAFR

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